Good policies—including your anti-harassment
policy—can help shape the workplace culture. Here are five
general recommendations for HR professionals to consider as they
revisit their organizations' existing anti-harassment
policies.

Don't Be Limited to Sexual Harassment

Every anti-harassment policy should cover sexual harassment. But
we cannot forget that other kinds of harassment are equally
unlawful and must be addressed, too.

Simply stated, harassment based on any protected status is
prohibited. This would include race, ethnicity and religion.

Imagine the question you'll be asked at a deposition in a
lawsuit from one of your employees if your policy addresses sexual
harassment but not race: "Why do you think sexual harassment
is worse than racial harassment?" There's no good
answer.

Avoid the question by making sure your policy is not limited to
sexual harassment.

Avoid Legal Definitions

All of us have seen policies that quote regulations published by
the Equal Employment Opportunity Commission (EEOC). The legal
definition is fine for lawyers but, without more context, provides
inadequate notice to employees.

You must include real-life examples of unacceptable conduct in
your policy, examples that will resonate in your organization's
culture.

Sometimes, employers struggle with how much detail to
provide. I get it. You don't want to make
individuals uncomfortable with a policy that was designed to
make the working environment more comfortable.

Why not make this concern explicit in the policy? State that
your intent is not to make anyone uncomfortable but instead is to
make clear what is unacceptable so that employees have a
comfortable working environment.

Even with this disclaimer, please be thoughtful on how you
describe prohibited conducted. For example, every policy should
include the phrase "hate words." But I would never use
the actual words.

However, you can give examples without spelling them out.
For example, you might say: "Use of hate words, such as
the 'n-word.' "

Don't Focus on What Is Prohibited

In order for harassment to be unlawful under federal law,
it must be, among other factors, severe or pervasive. The more
severe it is, the less pervasive it need be. The converse is
true.

However, employers do not want to wait until conduct is unlawful
before prohibiting (or responding to) it. The goal is to prevent
and remedy harassing conduct before it rises to the level of
illegality.

Therefore, it is recommended that, within a
policy, employers lead off the examples of
prohibited conduct with something like: "The following
behaviors are unacceptable and therefore prohibited, even if
not unlawful in and of themselves."

The law sets a minimum. You want to make clear that you will not
tolerate unacceptable conduct, even if it is not unlawful.

On a related note, it is dangerous to start your list of
prohibited conduct with something like: "Sexual harassment
includes but is not limited to ... " This is problematic
for multiple reasons.

First, the conduct at issue may not be harassment as a matter of
law. Mocking a disabled employee's walk is harassing behavior
based on disability. But, at least under federal law, if there is
nothing more, it is probably not enough in and of itself to
create a hostile work environment.

Second, if your prohibitions are framed in terms of legal
wrongs, your corrective actions may need to be, too. And here you
risk defamation claims.

That is, the conduct may not be severe or pervasive enough to
violate federal law. But it may be bad enough to meet your judgment
as to what is unacceptable, and therefore, it may be prohibited.
Why apply a standard to conduct you may not be able to prove?

Drill Down on Sexual Harassment

Of course, you will want to include quid pro quo harassment and
give an example of what that means—for example,
requiring an employee to submit to sexual advances as a
condition of a promotion.

But you also will want to include examples of conduct that does
not constitute quid pro quo harassment that may nonetheless give
rise to a hostile work environment. Common examples include sexual
bantering, sexual "jokes" and inappropriate
touching.

However, do not limit your examples to the strictly sexual. In
particular, do not forget to include examples that
involve pregnancy as well as gender-biased statements, such as
stereotypes about women or men.

It is not just comments about someone's sexual desirability
that may give rise to a hostile work environment. Comments about
someone's perceived lack of attractiveness can give rise to a
hostile work environment.
Sexual objectification—favorably or negatively—is
unacceptable.

Consider the Scope of the Prohibitions

It is helpful to make it clear how the prohibitions apply. Here
are a few suggestions:

First, make clear that the
prohibitions apply to employees and nonemployees alike. Your
employees cannot subject nonemployees with whom they work to
prohibited conduct, and they should use the complaint procedure if
a nonemployee with whom they work engages in such conduct.

Second, be careful not to suggest
that the policy applies only in the workplace. At a very minimum,
make clear that the policy applies to company-sponsored social
events.

The policy should make explicit that the prohibitions apply not
only to the spoken or written word but also to e-mail, text
messages and social media posts. I have observed a steady rise in
the number of cases of harassment involving text messages and
social media, so employees should be put on notice.

Of course, some social media may be strictly private. That is
rare but possible. Consider language to the following effect: The
harassment policy applies to social media posts, tweets, etc., that
are about or may be seen by employees, customers, etc.

Yes, the employee's Facebook account may be configured as
private. But if co-workers are friends and see the posts,
the posts are fair game for corrective action.

Of course, a strong anti-harassment policy is only half the
equation. The other half is a robust complaint procedure, which
will be addressed in an upcoming column.

Disclaimer:This Alert has been
prepared and published for informational purposes only and is not
offered, nor should be construed, as legal advice. For more
information, please see the firm's
full disclaimer.

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Most harassment in the workplace occurs in more subtle ways, requiring a nuanced approach to training employees how to prevent, detect and respond to it. Given the recent outpouring of (mostly) women and men coming forward to share their experiences of sexual harassment in the workplace, it is more important than ever for employers to reevaluate and rethink their approach to training.

The US Court of Appeals for the Fifth Circuit's recent decision in Swindol v. Aurora Flight Sciences Corporation casts new doubt on the enforceability of employer policies prohibiting employees from carrying firearms onto their employer's property

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